Opinion
INDEX NO. 152524/2018
04-08-2019
SANDRA ESCOBAR and JASMINE ESCOBAR, Plaintiffs, v. TUTOR PERINI CORPORATION, EXCAVATORS UNION LOCAL 731, RAILWORKS TRANSIT INC., and NICHOLAS LOVAGLIO, Defendants.
NYSCEF DOC. NO. 30 PRESENT: HON. KATHRYN E. FREED Justice MOTION SEQ. NO. 001
DECISION AND ORDER
The following e-filed documents, listed by NYSCEF document number (Motion 001) 9, 10, 11, 12, 13, 17, 18, 20, 21 were read on this motion to/for DISMISS. Upon the foregoing documents, it is ordered that the motion is decided as follows.
Plaintiffs Sandra Escobar (Sandra) and Jasmine Escobar (Jasmine) claim that their employer, Tutor Perini Corporation (TPC), as well as defendants Excavators Union Local 731 (Local 731), RailWorks Transit, Inc. (RailWorks) and Nicholas Lovaglio (Lovaglio), discriminated against them by subjecting them to a hostile work environment on the basis of race, gender and sexual orientation in violation of the New York City Human Rights Law (NYCHRL). Plaintiffs further claim that defendants also retaliated against them in violation of the NYCHRL. Specifically, plaintiffs allege that RailWorks aided and abetted the above violations of the NYCHRL and that it is vicariously liable for Lovaglio's actions. RailWorks moves, pursuant to CPLR 3211 (a) (7) to dismiss the complaint as against it. For the reasons set forth below, RailWorks' motion to dismiss is granted.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs, who are sisters, are construction workers and members of Local 731, a labor union. The amended complaint alleges that plaintiffs are both of Puerto Rican descent and that Jasmine is a lesbian. As relevant to this motion, plaintiffs were both employed by TPC. In 2016, Sandra was working for TPC and was assigned to work at the "East Side Access" construction site. Amended complaint, ¶ 22. Lovaglio, another construction worker, also worked for TPC and was assigned to the same work site. Lovaglio allegedly "has also been an officer, employee or representative of Local 731." Id., ¶ 12.
In the amended complaint, plaintiffs claim that, "[b]eginning in about November, 2016, Lovaglio began a campaign of sexual and racial harassment against Sandra." Id., ¶ 24. For example, on several occasions, Lovaglio inappropriately touched Sandra on her legs and buttocks against her will. Among other allegations, on April 12, 2017, Lovaglio stated to Sandra, "I will kill all you motherfucking spics and all you motherfucking niggas." Id., ¶ 29.
Although Sandra reported the incident to the foreman, the foreman told her to ignore Lovaglio. Shortly thereafter, Lovaglio again allegedly attempted to touch Sandra against her will and also threatened to have her fired.
Jasmine began working for TPC in 2017 and was also assigned to the East Side Access project. According to plaintiffs, "Lovaglio subjected Jasmine to a discriminatory working environment on the basis of her race, gender and sexual orientation." Id., ¶ 35. Lovaglio allegedly made degrading remarks about Jasmine's sexual orientation.
On July 7, 2017, when Lovaglio overheard Sandra telling coworkers that she was going on vacation, he told Sandra that when she came back, she would not have a job. When Sandra returned from vacation two weeks later, she and Jasmine were fired.
In their amended complaint, plaintiffs allege that, up until that date, Sandra feared for her job and had not made a formal complaint. However, after she was terminated, she made a formal complaint to TPC. After an investigation, Sandra's allegations were substantiated and TPC terminated Lovaglio. According to plaintiffs, TPC advised its employees that they would no longer be subjected to Lovaglio's "outrageous behavior." Id., ¶ 49.
Lovaglio's Employment By RailWorks
Sandra was eventually rehired by TPC and was again assigned to the East Side Access project. According to plaintiffs, "TPC then arranged for Lovaglio to be hired by RailWorks, a subcontractor of TPC, and [she was] assigned to the same exact workplace. RailWorks employed Lovaglio with full knowledge of his offensive workplace behavior and the reasons he was terminated by TPC." Id., ¶ ¶ 50, 51.
Together once again at the construction site, Lovaglio, now an employee of RailWorks, allegedly "continued to harass Sandra by taunting her. Lovaglio would single her out to get her attention and then laugh at her, as if to convey the message that 'you can't touch me.'" Id., ¶ 55. Lovaglio also allegedly harassed a TPC employee who had supported Sandra's complaint. Lovaglio would write on the walls that the TPC employee was a "rat," which, in the construction industry, is a "universally loathed individual." Id., ¶ 54. Although the behavior was brought to TPC's attention, no one addressed it.
Plaintiffs claim that, while they were employed by TPC, they were warned that if they complained about Lovaglio's behavior, they would be "blackballed in the industry because of [Lovaglio's] strong connection with Union leadership." Id., ¶ 57. Plaintiffs further assert that, prior to the incidents with Lovaglio, they had no trouble finding employment in the industry. However, Jasmine has not been able to find employment since being terminated in July 2017. In addition, although briefly rehired, Sandra was laid off again by TPC and has been unable to find employment.
Plaintiffs' amended complaint consists of seven causes of action. In the first and second causes of action, plaintiffs claim that TPC and Lovaglio violated the NYCHRL by subjecting them to a discriminatory working environment on the basis of their gender, race and sexual orientation. Plaintiffs further allege that TPC and Lovaglio retaliated against them when they opposed the discriminatory working environment. The third cause of action, against Local 731 and RailWorks, alleges that these defendants violated the NYCHRL by aiding and abetting the alleged violations of the NYCHRL by TPC and Lovaglio. The fourth cause of action asserts that Lovaglio assaulted and battered Sandra. In the fifth and sixth causes of action, grounded in vicarious liability, plaintiffs claim that TPC and Local 731, respectively, are vicariously liable for Lovaglio's actions. The seventh cause of action claims that RailWorks is vicariously liable for Lovaglio's actions during the time he was employed by RailWorks. In addition, "[t]o the extent that [Lovaglio's] actions were contrary to [RailWorks'] official policy, [RailWorks] was aware of [Lovaglio's] actions and tolerated them, thereby endorsing and ratifying them." Id., ¶75.
RailWorks' Motion to Dismiss
RailWorks argues that plaintiffs failed to plead sufficient facts in support of the two causes of action alleged against it and, as a result, it is entitled to dismissal of the complaint. Initially, RailWorks maintains that the aiding and abetting claim must fail because plaintiffs did not allege that it directly participated in the discriminatory conduct, namely the hostile work environment and the retaliation. With respect to the hostile work environment claim, according to RailWorks, all of the harassing conduct occurred while Lovaglio was employed by TPC. By the time RailWorks became Lovaglio's employer, there were no other allegations of harassment. As a result, aider and abettor liability cannot attach since plaintiffs have not alleged that RailWorks actually participated in the conduct giving rise to the discrimination claim.
In terms of retaliation, TPC was the employer at the time plaintiffs were allegedly retaliated against by means of their termination. RailWorks maintains that plaintiffs did not allege that it was involved in the decision to terminate them. As a result, RailWorks argues that plaintiffs are unable to plead that aider and abettor liability attaches for retaliation.
Citing Administrative Code § 8-107 (13) (b) (3) and Zakrzewska v The New School (14 NY3d 469, 479 [2010]), RailWorks argues that the other cause of action alleged against it, grounded in vicarious liability, must also fail. First, according to RailWorks, plaintiffs, who were never its employees, cannot allege that Lovaglio, as a RailWorks employee, exercised supervisory or managerial responsibility over them. Second, plaintiffs cannot allege that RailWorks knew of, or should have known of, Lovaglio's allegedly discriminatory conduct. RailWorks asserts that, under the NYCHRL, employers cannot be held liable for their employees' discriminatory acts that occurred prior to their current employment and with individuals who were never employees. RailWorks adds that the allegation that Lovaglio purportedly called another TPC employee a "rat" is irrelevant, since that conduct was not directed at plaintiffs, but rather at a nonparty.
In Zakrzewska, the Court of Appeals held the following, in relevant part:
"[T]he NYCHRL imposes liability on the employer in three instances: (1) where the offending employee exercised managerial or supervisory responsibility (the circumstance alleged in [plaintiff's] complaint); (2) where the employer knew of the offending employee's unlawful discriminatory conduct and acquiesced in it or failed to take immediate and appropriate corrective action; and (3) where the employer should have known of the offending employee's unlawful discriminatory conduct yet failed to exercise reasonable diligence to prevent [it]."Zakrzewska v The New School, 14 NY3d at 479 (internal quotation marks and citation omitted).
In opposition, plaintiffs claim that RailWorks aided and abetted TPC and Lovaglio in discriminating against them and also in retaliating against them after they complained about Lovaglio's conduct. According to plaintiffs, RailWorks, as a subcontractor of TPC, was indebted to TPC. Although TPC wanted to appear that it was punishing Lovaglio for his conduct, the three parties entered into an arrangement whereby RailWorks would employ Lovaglio and assign him to the same location where he had worked before.
In opposition to the motion, plaintiffs did not submit any affidavits and counsel did not submit a memorandum of law but only an affirmation containing statements of law.
Plaintiffs further allege that Lovaglio continued to engage in a hostile work environment once he started working for RailWorks. According to the amended complaint, Lovaglio taunted Sandra and another TPC employee who had supported Sandra's complaint. Plaintiffs note that Sandra was eventually terminated again, and that plaintiffs have been unable to find work in the industry. Plaintiffs maintain that RailWorks knew of Lovaglio's history in the workplace yet hired him back, thereby allowing him to harass Sandra and another employee, and to also retaliate against plaintiffs.
LEGAL CONCLUSIONS
I. Dismissal
On a motion to dismiss pursuant to CPLR 3211 (a) (7), "the facts as alleged in the complaint must be accepted as true, the plaintiff is accorded the benefit of every possible favorable inference," and the court must determine simply "whether the facts as alleged fit within any cognizable legal theory." Mendelovitz v Cohen, 37 AD3d 670, 671 (2d Dept 2007). Under CPLR 3211 (a) (7), "a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint and the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one." Leon v Martinez, 84 NY2d 83, 88 (1994) (internal quotation marks and citations omitted). However, "bare legal conclusions as well as factual claims flatly contradicted by the record are not entitled to any such consideration." Silverman v Nicholson, 110 AD3d 1054, 1055 (2d Dept 2013) (internal quotation marks and citation omitted).
II. Aiding and Abetting Discrimination, Hostile Work Environment and Retaliation
Pursuant to the NYCHRL, as stated in Administrative Code § 8-107 (1) (a), it is an unlawful discriminatory practice for an employer to refuse to hire or employ, or to fire or to discriminate against an individual in the terms, conditions or privileges of employment because of the individual's actual or perceived race, gender or sexual orientation.
A hostile work environment exists where an employee "has been treated less well than other employees because of her protected status." Chin v New York City Hous. Auth., 106 AD3d 443, 445 (1st Dept 2013). Despite the broader application of the NYCHRL, conduct that consists of "'petty slights or trivial inconveniences' . . . do[es] not suffice to support a hostile work environment claim." Buchwald v Silverman Shin & Byrne PLLC, 149 AD3d 560, 560 (1st Dept 2017) (citation omitted).
Under the NYCHRL, it is unlawful to retaliate or discriminate against someone because he or she opposed discriminatory practices. Administrative Code § 8-107 (7). For plaintiff to successfully plead a claim for retaliation under the NYCHRL, she must demonstrate that: "(1) [she] participated in a protected activity known to defendants; (2) defendants took an action that disadvantaged [her]; and (3) a causal connection exists between the protected activity and the adverse action." Fletcher v Dakota, Inc., 99 AD3d 43, 51-52 (1st Dept 2012). Protected activity under the NYCHRL refers to "opposing or complaining about unlawful discrimination." Brook v Overseas Media, Inc., 69 AD3d 444, 445 (1st Dept 2010) (internal quotation marks and citations omitted).
"It shall be an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this chapter, or to attempt to do so." Administrative Code § 8-107 (6). Where liability under Administrative Code § 8-107 (a) is expressly limited to the employer, the aiding and abetting provision "extends liability to persons and entities beyond joint employers, and this provision should be construed broadly . . .." Griffin v Sirva, Inc., 29 NY3d 174, 187 (2017); see e.g. Schindler v Plaza Constr. LLC, 154 AD3d 495, 496 (1st Dept 2017) (internal quotation marks and citation omitted) ("Even if Plaza is not plaintiff's employer or joint employer within the meaning of the City HRL, it may be held liable to the extent it aid[ed], abet[ted], incite[d], compel[led] or coerce[d] the alleged discrimination").
Recently, the Court of Appeals noted that the purpose of the aiding and abetting provision in the New York State Human Rights Law (NYSHRL) was "to bring within the orbit of the bill all persons, no matter what their status, who aid or abet any of the forbidden practices of discrimination or who attempt to do so, as well as to furnish protection to all persons, whether employers, labor organizations or employment agencies, who find themselves subjected from any source to compulsion or coercion to adopt any forbidden employment practices." Griffin v Sirva, Inc., 29 NY3d at 187 (internal quotation marks and citation omitted); see also Ananiadis v Mediterranean Gyros Prods., Inc., 151 AD3d 915, 917 (2d Dept 2017) ("Where a defendant provided, or attempted to provide, assistance to the individual or individuals participating in the primary violation, he or she may be found liable for aiding and abetting discriminatory conduct"). Courts have found that "[t]he same standards of analysis used to evaluate aiding and abetting claims under the NYSHRL apply to such claims under the NYCHRL because the language of the two laws is 'virtually identical.'" Feinsold v New York , 366 F3d 138, 158 (2d Cir 2004).
To be held liable as an aider and abettor under the NYCHRL, plaintiffs must allege that RailWorks "actually participate[d] in the conduct giving rise to a discrimination claim . . . ." Id. at 158 (internal quotation marks and citation omitted). In opposition to the motion to dismiss, counsel claims that RailWorks enabled TPC, in essence, to continue to employ Lovaglio, as part of an arrangement with Lovaglio and TPC, and that this continued employment led to further harassment of Sandra. Plaintiffs also allege that RailWorks employed Lovaglio despite knowing his history at TPC. Nonetheless, the complaint identifies TPC, not RailWorks, as the party who arranged for Lovaglio to be hired by RailWorks after his termination. As a result, plaintiffs failed to plead facts that RailWorks "bore the requisite discriminatory intent, and that it compel[led] or coerce[d] the alleged discriminatory employment decisions." Schindler v Plaza Constr. LLC, 154 AD3d at 496 (internal quotation marks and citations omitted).
"[E]mployment discrimination cases are themselves generally reviewed under notice pleading standards . . . . [I]t has been held that a plaintiff alleging employment discrimination 'need not plead [specific facts establishing] a prima facie case of discrimination' but need only give 'fair notice' of the nature of the claim and its grounds." Vig v New York Hairspray Co., L.P., 67 AD3d 140, 145 (1st Dept 2009) (internal citation omitted). Nevertheless, in this situation, plaintiffs' allegations regarding RailWorks' involvement in a "discriminatory scheme" are conclusory and must be dismissed. See e.g. Lewis v Triborough Bridge & Tunnel Auth., 77 F Supp 2d 376, 381 (SD NY 1999) ("[I]f the plaintiff fails to plead any facts suggesting that a defendant displayed any intent to discriminate or was in any way involved in the alleged discriminatory scheme, the defendant may not be held liable under the HRL"); see also Mid-Hudson Val. Fed. Credit Union v Quartararo & Lois, LLC, 155 AD3d 1218, 1219 (3d Dept 2017), affd 31 NY3d 1090 (2018) ("Notwithstanding the broad pleading standard, bare legal conclusions with no factual specificity do not suffice to withstand a motion to dismiss").
Plaintiffs allege that, while employed by RailWorks, Lovaglio subjected Sandra to a hostile work environment, by, in relevant part, taunting Sandra by singling her out to get her attention and laughing. In addition, Lovaglio wrote messages on the wall that another nonparty TPC employee was a "rat." It is unlikely that these generalized allegations occurring after Lovaglio left TPC would rise to the level of an actionable work environment under the NYCHRL (emphasis added). Where a "[p]laintiff has not demonstrated a primary violation, there can be no liability for aiding and abetting." White v Pacifica Found., 973 F Supp 2d 363, 378 (SD NY 2013).
But even assuming, without deciding, that they would rise to the level of an actionable work environment, RailWorks cannot be held liable as an aider and abettor on a hostile work environment claim because "[t]here are no factual allegations that [RailWorks] actually participated in any discriminatory actions." Stevens v State of New York, 691 F Supp 2d 392, 401 (SD NY 2009).
Courts have found that "a failure to conduct a proper and thorough investigation or to take remedial measures upon a plaintiff's complaint of discriminatory conduct is sufficient to impose liability on an aiding and abetting theory." Ananiadis v Mediterranean Gyros Prods., Inc., 151 AD3d at 918. Here, however, there are no allegations that RailWorks was made aware of Lovaglio's conduct after he commenced employment with RailWorks or that RailWorks was aware of Sandra's resulting complaints to TPC.
In the amended complaint, plaintiffs allege that they were subjected to the retaliatory act of termination after complaining about Lovaglio's conduct at TPC. In addition, plaintiffs allege that, as a result of Lovaglio's connection to the union, they have been unable to find work in the industry. In opposition to RailWorks' motion to dismiss, plaintiffs claim that, after he started working for RailWorks, Lovaglio engaged in retaliatory conduct by taunting Sandra and insulting a TPC employee who had supported Sandra.
In the instant situation, plaintiffs have not adequately pleaded that RailWorks aided and abetted retaliatory conduct. The record indicates that plaintiffs were terminated and advised not to complain about Lovaglio even before Lovaglio started working for RailWorks. Plaintiffs did not allege that RailWorks participated in the decision to terminate them or advise other employers not to hire them. See e.g. Abe v Cohen, 115 AD3d 491, 491 (1st Dept 2014) ("generic allegations fail to state a cause of action of retaliation").
With respect to Lovaglio's conduct, the amended complaint alleges that he insulted a TPC employee and that his continued offensive behavior was brought to TPC's attention. At this stage, it is unclear whether this would be actionable retaliatory conduct. See e.g. Manning v Nandor Techs., Inc., 2019 US Dist LEXIS 42862, *11-12 (SD NY 2019) (claim alleging non-employer defendant engaged in retaliatory conduct by taking pictures of plaintiff's wife at work survived motion to dismiss). Nonetheless, as explained in relation to the hostile work environment claim, aider and abettor liability cannot attach, since there is no indication that RailWorks was involved in this conduct or that it was even made aware of its occurrence. Accordingly, RailWorks' motion to dismiss the third cause of action, sounding in aiding and abetting, is granted.
III. Vicarious Liability
By its own terms, NYCHRL makes it unlawful for employers to engage in discriminatory practices. While the definition of employer is not given in the NYCHRL, the Court of Appeals has recognized these four factors to be considered in determining whether a defendant may be sued as an employer: "(1) the selection and engagement of the servant; (2) the payment of salary or wages; (3) the power of dismissal; and (4) the power of control of the servant's conduct." Griffin v Sirva, Inc., 29 NY3d at 186 (internal quotation marks and citation omitted).
Except in Administrative Code § 8-102, where the definition of employer is related to the number of employees.
Although whether a defendant qualified as an employer was addressed in the context of a NYSHRL claim, courts have applied the same test to determine employer status under the NYCHRL. See e.g. Urena v Swiss Post Solutions, Inc., 2016 US Dist LEXIS 128856, *9, 2016 WL 5173389, *3 (SD NY 2016).
In the seventh cause of action, plaintiffs allege that RailWorks is vicariously liable for Lovaglio's alleged violations of the NYCHRL while he was employed by the company. However, in the instant situation, TPC was plaintiffs' employer. Plaintiffs do not allege that they were ever employed by RailWorks, that RailWorks was a joint employer, or that Lovaglio exercised managerial or supervisory control over them. Since primary employer liability for any NYCHRL violations cannot attach to RailWorks, this cause of action is dismissed. Moreover, plaintiffs abandoned this claim by failing to address it in response to the dismissal motion. See e.g. Cassell v City of New York, 159 AD3d 603, 603 (1st Dept 2018) ("Plaintiff's claim of municipal liability under 42 USC § 1983 is abandoned because, in the motion court, he did not oppose the City's argument that the complaint had failed to state a section 1983 claim").
"The joint employer doctrine, along with the single employer (or single integrated employer) doctrines have been developed to allow a plaintiff to assert employer liability in the employment discrimination context against entities that are not her formal, direct employer." Griffin v Sirva Inc., 835 F3d 283, 292 (2d Cir 2016) (internal quotation marks and citations omitted). Here, however, plaintiffs do not allege that RailWorks should be considered a "single employer" or "joint employer" for purposes of NYCHRL liability.
Therefore, in light of the foregoing, it is hereby:
ORDERED that the motion of RailWorks Transit, Inc. to dismiss the complaint herein is granted and the complaint is dismissed in its entirety as against said defendant, with costs and disbursements to said defendant as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly in favor of said defendant; and it is further
ORDERED that the action is severed and continued against the remaining defendants; and it is further
ORDERED that the caption be amended to reflect the dismissal and that all future papers filed with the court bear the amended caption; and it is further
ORDERED that counsel for the moving party shall serve a copy of this order with notice of entry upon the Clerk of the Court (60 Centre Street, Room 141B) and the Clerk of the General Clerk's Office (60 Centre Street, Room 119), who are directed to mark the court's records to reflect the change in the caption herein; and it is further
ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address www.nycourts.gov/supctmanh); and it is further
ORDERED that this constitutes the decision and order of the court. 4/8/2019
DATE
/s/ _________
KATHRYN E. FREED, J.S.C.